State v. Ferguson

• Decision Date: 23 September 1980
• Docket Number: No. 14399,14399
• Citation: 270 S.E.2d 166,165 W.Va. 529
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ernest FERGUSON.

Page 166

270 S.E.2d 166

165 W.Va. 529

STATE of West Virginia v. Ernest FERGUSON.

No. 14399.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1980.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." State v. Starkey, W.Va., 244 S.E.2d 219 (1978), Syllabus Point 1.

2. Malice, wilfulness and deliberation, elements of the crime of first-degree murder, may be inferred from the intentional use of a deadly weapon.

3. Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial.

4. The denial of a motion to voir dire a witness or vouch the record about a witness' qualifications is not error if moving counsel had the opportunity to obtain that information on cross-examination.

5. "A party who is surprised by unfavorable testimony given by his own witness may interrogate such witness as to previous inconsistent statements made by him." State v. Swiger, 105 W.Va. 358, 143 S.E. 85 (1928), Syllabus Point 2.

6. "Insofar as the jury was permitted but not required to find from the evidence that the defendant had the intent to kill, and insofar as the jury was properly and adequately advised of the State's duty to prove intent to kill beyond a reasonable doubt, the giving of the instruction that 'the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act; was not reversible error in this case." State v. Wright, W.Va., 249 S.E.2d 519 (1978), Syllabus Point 2.

7. "It is within the sound discretion of the trial court to permit weapons used in the commission of the crime and the garments worn by the deceased at the time he was killed showing marks of violence, which have been identified and given in evidence, to be carried by the jury to their room when they retire to consider of their verdict." State v. Panetta, 85 W.Va. 212, 101 S.E. 360 (1919), Syllabus Point 9.

Greene, Ketchum & Mills and Larry A. Bailey, Wayne, Ralph S. Dickerson, Kenova, for plaintiff-in-error.

Chauncey H. Browning, Atty. Gen., Charleston, Robert O. Ellis, Sp. Asst. Atty. Gen., Huntington, for defendant-in-error.

HARSHBARGER, Justice:

In March, 1978, Ernest Ferguson was convicted by a jury in Wayne County Circuit Court, and sentenced to life imprisonment without recommendation of mercy, for murdering his wife, Leota.

The undisputed evidence was that Mrs. Ferguson died of a bullet wound suffered on July 19, 1977, at her home, and that immediately before receiving the wound she was engaged in physical struggle with her husband.

Ferguson testified that his wife, with pistol in her left hand, had threatened to kill herself, had then threatened him, and that while he was trying to disarm her the pistol discharged and thus she killed herself. The government's evidence was that Mrs. Ferguson could not possibly have shot herself, and only her husband could have killed her. The state also attempted to prove he had previously maliciously threatened and abused her.

Testimony by Dr. Raul V. Pisano, a forensic pathologist who performed the post-mortem examination of Mrs. Ferguson, was that the fatal bullet entered at the rear of her right armpit, traversed the thoracic cavity and penetrated her aorta; and the pistol was positioned either at the right side or rear of her right armpit. He found no gun powder or residue either inside or outside the wound, and over objection, he gave his opinion that the absence of powder demonstrated that the pistol when fired was more than eighteen inches from her.

The government had two notes found in Mrs. Ferguson's Bible and identified by Elaine Stamper, her daughter, to be in her mother's handwriting. The first was:

Ernest shot me Leota in the back April 29th, 77.

The second was in part:

To whom it may concern. I don't know what time I'm going to die but the way things is it can be anytime. Ernest shot me in the back April 29-77. June the 2nd he came in beat me up and pulled the gun on me several times . . . June 29th he cocked the gun between my eyes and said if I spoke he would kill me.

They were identified in the jury's presence but were not put in evidence.

Later, questioning Ferguson's son, James Madison Ferguson, the prosecutor referred to the latter note:

James, if your mother left a note, and it indicated that she was shot on April 29, 1977, would that be the truth or a lie.

Defense counsel's objection was sustained. The prosecutor also asked:

Do you remember of her being shot in the back on April 29, 1977?

Defense counsel did not object, and the witness answered that he knew nothing about it.

Dr. Pisano also testified that he saw two areas of scar tissue on Mrs. Ferguson's back, three to four months old, and microscopic examination revealed that they contained material he found to be consistent with gunpowder.

James Madison Ferguson had given police a statement that just before the shooting his father had gone into their home, railing at and cursing his mother, and:

I went around back of the house and heard Dad cussing and saying, God Damn, you don't want to die? I could hear Mom grunting every time he would hit her. Then I heard the gun go off and I heard my Mommy scream, and then me and my brother run up to the bridge above the house to hide.

But when he was testifying for the government he was asked about the statement and said:

I lied about all that. At the time I thought my Dad did shoot my mother, but that's just what people told. I lied about everything I said on that.

The state then asked that he be declared a hostile witness, the court agreed, and questioning disclosed to the jury the contents of his prior statement.

The prosecutor, in closing, picked up the pistol that had been introduced into evidence and said:

I ask you to take this gun to the jury room with you, and if you can get into a position with this gun like this, or even like this, and remember they testified that she was holding it in this fashion, and bring it around and shoot yourself with it and not leave powder burns on your hands, around the wound or inside the track of the burns, then I say find this man not guilty.

I.

Was there sufficient evidence to support a murder verdict?

In State v. Starkey, W.Va., 244 S.E.2d 219 (1978), Syllabus Point 1, we suggested a standard for reviewing evidence sufficiency in criminal cases:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

We have held that this standard applies to a trial court's consideration of motions for directed verdicts, to its determination about the choices of verdicts to be presented to a jury, Gaines v. Leverette, W.Va., 266 S.E.2d 451 (1980), and in our consideration of appeals, State v. Dobbs, W.Va., 259 S.E.2d 829 (1979).

The United States Supreme Court in Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, 13 (1978), wrote:

The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury finding the defendant guilty beyond a reasonable doubt. (Citations omitted.) Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision. . . .

See, State v. Frazier, W.Va., 252 S.E.2d 39 (1979).

A homicide maliciously committed is murder, State v. Roush, 95 W.Va. 132, 120 S.E. 304 (1923). Methods for proving malice cannot be definitely prescribed because it is a subjective attitude, State v. Gunter, 123 W.Va. 569, 17 S.E.2d 46 (1941); however, it may be inferred from the intentional use of a deadly weapon, State v. Brant, W.Va., 252 S.E.2d 901 (1979). Also, it may be implied from a deliberate cruel act against another because the act indicates a heart, regardless of social duty, fatally bent on mischief. See, State v. Welch, 36 W.Va. 690, 15 S.E. 419 (1892).

The difference between first and second-degree murder is whether the homicide was wilful, deliberate, and premeditated. State v. Hobbs, 37 W.Va. 812, 17 S.E. 380 (1893). Intention to kill need not exist for any particular length of time for the act to be wilful, deliberate, and premeditated; it is only necessary that the intention initially should come into existence anytime before the homicide. State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1951); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950). Like malice, wilfulness and deliberation may be inferred when a deadly weapon is used. State v. McCauley, 130 W.Va. 401, 43 S.E.2d 454 (1947); State v. Panetta, 85 W.Va. 212, 101 S.E. 360 (1919).

There was evidence that Ferguson killed his wife with a deadly weapon, and the jury could have inferred malice. Also, "I . . . heard Dad cussing and saying, God damn, you don't want to die? I could hear Mom grunting every time he would hit her...